“If you break the law, you cannot make the law”.

The words above were spoken by Conservative MP David Davis last week in justification of the current ban on voting rights for most prisoners, and Parliament’s reluctance to accede to the European Court of Human Rights’ ruling that such a ban was illegal. I don’t intend to go into the merits of the ECtHR and the Convention it upholds in this blog, but I would like to respond – however belatedly – to the sound-bite, which Davis and many others clearly feel expresses a compelling logic, with a simple question: why not?

To begin with, it is clearly not the case in fact that “if you break the law, you cannot make the law” – assuming that by “make the law”, Davis means “participate in the election of legislators”. Firstly, civil wrongs, which constitute the vast majority of breaches of the law, do not attract any such ban. Secondly, nor does every criminal conviction – many do not lead to a prison sentence. Thirdly, even in those cases where a prison sentence is served, the right to vote is resumed after the completion of the sentence, although the person has still broken the law. Nobody is suggesting that any of these situations ought to change, so it’s pretty clear that there is no black-and-white rule that breaking the law prohibits an individual from making the law. However you look at it, a line has been drawn according to a mutable judgement.

Of course, there is a clear implication in the above quote that if you break the law, you shouldn’t be able to participate in the legislative process – obviously Davis is justifying something, and not merely stating a fact, however inaccurate. I can see two reasons why one might make such an argument and legislate accordingly. Firstly, in order to protect society from the consequences of not doing so. Secondly, regardless of the consequences, in order to impose personal moral beliefs shared by a majority in Parliament – and, quite possibly, by a majority in society – on those who do not share them, even though these moral differences do not pose any substantial danger to society. Hopefully I don’t need to convince anybody that the latter is an appallingly illiberal approach to government, and shouldn’t be entertained. What remains is the legitimate question of protecting society.

But while it’s a legitimate question, is it a justified fear? What exactly are the dangers of allowing prisoners to vote, and what is the purpose of denying them the opportunity?

One of the principal arguments for criminal remedies such as imprisonment – justified or not – is deterrence through punishment. But does anyone seriously argue that the prospect of a lost vote could deter an individual who was unconcerned by the prospect of lost liberty? I’d be surprised. Davis has expressed a belief that “giving prisoners the vote would not stop one crime in this country”, but surely it’s at least equally pertinent to point out that the reverse is also likely to be true: denying them the vote will not stop one crime either.

It seems to me that central to this point is the base position from which one determines the extent of the right to vote. Specifically: is the right assumed, and only then removed with good reason; or is no right assumed, and the vote granted selectively to those who “deserve” it? In arguing for the former, I will simply say that I would always wish for any denial of basic rights by any authority to require the strongest possible justification, and I don’t think it unreasonable to expect a British government in 2011 to be liberal enough to treat voting as a basic right.

A more practical issue is that of exactly where prisoners vote, and whether prison populations could amount to voting blocks which could lead to skewed and undesirable election results in certain constituencies. Although I have more sympathy with the premise of this argument, in reality, it’s a bit of a swizz. Firstly, it is surely not beyond the bounds of practicality, for example, to allow prisoners to vote by post in the constituency in which they were resident prior to their sentence. Secondly, even discounting this, the largest prison populations in the UK number around 1500. The average constituency size is around 70000. Even the most effectively mobilised prison population would have no chance of unilaterally electing a candidate who was generally thought objectionable by law-abiding citizens.

A final point on the nature of crime itself. Our definitions of crime do not emanate from the earth, and we don’t derive them from some supernatural authority. They are human constructs, borne of our society and its representatives’ consensual judgements about what acts and omissions are inherently dangerous to that society – ideally, at least. The briefest recourse to history will draw your attention to many formerly imprisonable offences which are now broadly considered to be far less serious and, in some cases, not actually objectionable at all; by way of an example, homosexual activity between men was decriminalised in this country as recently as 1967. Now, it may be, after hundreds of years of constantly changing perspectives on what ought and what ought not to be criminal, that we have now “nailed it” (as some no doubt felt that they’d “nailed it” a hundred years ago, and two hundred years ago, and so on), and that none of the laws of today will ever be looked back on ruefully. It is possible, if you insist. But it is undeniably possible that we haven’t “nailed it” at all, and that our perspectives on crime will continue to evolve, as they always have. That understood, it is essential that we put into place mechanisms to ensure that those acts and omissions which are criminalised to the point of demanding incarceration are, at the very least, genuine fringe behaviours, practised and justified by few. It will surely never be an acceptable remedy to incarcerate great swathes of the population for the benefit of the remainder – that approach would drastically misunderstand the variety and difference which is inherent to any human population, and fundamental to the very notion of individual human rights. While the offences for which we imprison are fringe behaviours, practised and justified by few, then we have nothing to fear from granting prisoners the vote – their electoral voice will be diluted to the point of silence. For that voice to be heard would require us to imprison and marginalise in response to behaviours which are, quite simply, not marginal; and that is precisely the point at which that voice must be heard.